STATE AID - Week 9 - Prof. Valerio Cosimo Romano

I. Introduction If an undertaking receives financial or other assistance from the State or other public funds on a selective basis, there is risk that this favored treatment may operate as a form of protectionism to the detriment of other undertakings. This may disrupt normal competitive forces and threaten EU’s internal market objectives. TFEU contains provisions on State aid: Arts. 106, 107 and 108. EU Commission: control of State aid is one of the most important aspects of EU competition policy. Detailed State aid register (information on pending and decided cases). Surveys, reports and handbooks on State aid in the EU.

II. The notion of State aid (1/3) Art. 107(1) TFEU: prevents “any aid granted by a Member State or through State resources in any form whatsoever which distorts or threatens to distort competition by favouring certain undertakings or the production of certain goods … in so far as it affects trade between Member States” (unless the aid is permitted). To have ‘aid’, following conditions must be fulfilled: there must be aid; aid must be granted by the State or from State resources; aid must favor the aid beneficiary compared to other operators in the market (selective advantage); aid must distort or threaten to distort competition; aid must affect trade between Member States.

II. The notion of State aid (2/3) State aid can take a variety of forms: grants or subsidies from State or regional - local government; tax or social security exemptions; provision by State (or State-controlled undertakings) of goods or services on preferential terms; State guarantees, loans, debt write-offs or investments from public funds on preferential terms. State resources: includes all resources of central, regional and local government, and resources of public and private law undertakings or bodies. Decisive factor: funds are under State control!

II. The notion of State aid (3/3) Selective advantage: to be aid within the meaning of Art. 107(1) TFEU, the measure must also confer an economic advantage on the undertaking or undertakings that it/they would not have obtained under normal market conditions. Market economic operator principle (‘MEO’): a measure does not involve State aid if a Member State makes funds available to an undertaking on the same terms that would be provided in the normal course of events by a private investor applying ordinary commercial criteria. 2016 Commission Notice on State Aid: provides practical guidance to help identify State aid measures.

III. Mandatory and discretionary exemptions (1/2) Art. 107(2) = following forms of aid are automatically permitted: aid having a social character, granted in a not discriminatory way; aid to recover damage caused by natural disasters or exceptional circumstances; aid to the economy of certain areas of the Federal Republic of Germany affected by the division of Germany. Article 107(3): following forms of aid may be permitted: aid to promote development of EU underdeveloped areas; aid to promote projects of common European interest; aid to facilitate development of certain economic activities or areas; aid to promote culture and heritage conservation.

III. Mandatory and discretionary exemptions (2/2) EU Commission has considerable discretion in evaluating whether or not an aid measure is compatible under Article 107(3) TFEU. It has adopted block exemptions covering various categories of aid measures to reduce the number of cases that it is required to examine. It has published various guidelines setting out the applicable criteria in assessing compatibility of particular categories of aid measures with Art. 107(3) TFEU. If an aid measure falls outside one of block exemptions or relevant guidelines, the Commission will apply Art. 107(3) TFEU directly to assess the compatibility of the measure on an individual.

IV. Block exemptions (1/2) EU Commission adopted 2 block exemptions for certain categories of “horizontal” State aid (i.e. aid that is not specific to particular industry sectors): De Minimis Aid Exemption Regulation: covers aid provided to a single undertaking not exceeding €200,000 over any 3 year period (no need of notification). General Block Exemption Regulation (‘GBER’): covers a range of categories of aids including regional, training, SMEs, R&D, infrastructure and environmental (no need to notify aid but measure details must be published in the Official Journal).

IV. Block exemptions (2/2) EU Commission adopted guidelines for certain categories of aid not covered by the GBER: National regional aid: these Guidelines are applied to regional aid schemes except where they relate to particular industries covered by special rules. Rescue and restructuring aid: Commission regards rescue and restructuring aid as one of the most distortive types of State aid. The Guidelines contain strict conditions. Environmental and energy aid: these Guidelines set out the Commission’s approach in assessing public support projects and measures in the field of the environment and energy.

V. Financing of SGEIs (1/2) Art. 106 TFEU: Member States may grant special or exclusive rights to public or private undertakings to perform “services of general economic interest” (linked to performance of public service entrusted to the undertaking). When granting special or exclusive rights, States must comply with the EU competition rules (including State aid rules). Member States have some flexibility in defining what constitutes a SGEI. Art. 106(2) TFEU: undertakings entrusted with the operation of a SGEI are subject to the competition rules in so far as this does not obstruct the performance of the particular tasks assigned. Altmark case: CJEU established criteria that need to be satisfied for public service compensation not to constitute State aid.

V. Financing of SGEIs (2/2) Altmark criteria: recipient undertaking must be entrusted with clearly defined public service obligations to discharge; basis on which compensation is calculated must be established in advance in an objective and transparent manner; compensation cannot exceed what is necessary to cover all or part of the costs incurred in the discharge of the public service obligations; if undertaking is not chosen through public procurement procedure, the level of compensation needed must be determined on the basis of an analysis of costs which a typical undertaking would have incurred.

VI. EU Commission’s role in investigating State aid EU Commission has exclusive competence to decide whether or not State aid is permitted. States must notify the Commission of all plans to grant aid or to alter existing approved aid schemes (unless exemption applies). They must refrain from implementing the aid before the Commission’s authorization (“standstill obligation”). An aid recipient cannot itself seek Commission authorization for the aid. After formal notification and preliminary 2 months investigation, Commission will approve the aid or open an in- depth investigation under Art. 108(2). In-depth investigation ends with the Commission issuing: (i) a “positive decision” to close authorize the aid or (ii) a “negative decision” prohibiting the aid.

VII. Recover of unlawful aid Commission order for recovery: State is required to recover the aid “without delay” in accordance with domestic procedures. Purpose of recovery is to re-establish the situation that existed on the market prior to the granting of the unlawful aid. Repayment by the recipient of all the unlawful aid plus interest at an appropriate rate fixed by the Commission. Defenses to recovery are limited, and attempts to exclude recovery are rarely successful unless circumstances exist that would make it absolutely impossible (as a matter of fact) for the Member State to implement the decision. The limitation period for the recovery of aid is 10 years.

VIII. The EU Courts’ role in enforcing State aid rules State aid decisions are subject to judicial review by the General Court pursuant to Art. 263 TFEU. There are strict time limits and strict rules on who can bring an appeal. Standing before EU Courts: applicants must demonstrate that decision is “of direct and individual concern to them” and that they have an interest in its annulment. Court is restricted to assessing the legality of a Commission decision on the following grounds: (i) lack of competence; (ii) infringement of an essential procedural requirement; (iii) infringement of the Treaties; (iv) misuse of powers; (v) manifest error of facts; and/or (vi) a failure to provide sufficient reasons.